What Is The Law On Conspiracy In Hawaii And What Are The Punishments For It?
Article 81 under the UCMJ is applicable to all service members serving in any state including Hawaii. Article 81 primarily covers the charges of conspiracy. When addressing the original offense if the prosecutors can prove the conspiracy as a separate criminal act then they can leverage this activity to upgrade the sentence of a court-martial.
Defining Article 81
In cases of conspiracy which triggers Article 81, prosecutors have to prove:
- The defendant has conspired with other individuals of committing a crime under the code.
- The overt action that the defendant (or the co-conspirator) took to execute the conspiracy plan and put it into effect.
Problems with the Conspiracy Law
While the two basic elements which need to prove the act of conspiracy seem easy, simple, and straightforward, there are many twists and workaround which exist for each of these. Let us quickly take a look at the problems associated with the conspiracy law:
- Prosecutor is not required to identify the co-conspirators to have the defendant convicted of conspiracy.
- Prosecutor is only required to prove the defendant’s association in the conspiracy.
- Prosecutor only needs to ‘show’ that the co-conspirators were on the same page of understanding while they planned to accomplish their underlined objective.
- Prosecutor needs to prove that the defendant’s overt action was taken for the fulfillment of conspiracy goal even if the action was completely abided by the law.
- Conspiracy law may sometimes violate First Amendment rights. A prosecutor working on such cases can use actions such as defendant’s presence in a meeting or his/ her speech or any links to the co-conspirator as a proof against the defendant. Therefore, it becomes difficult that people are not prosecuted for just talking or unknowingly having contacts with unpopular individuals.
- The core of US law states that every individual is liable for his own action. However, the evidentiary rule in a conspiracy is likely to violate this core. Statements or actions taken by a co-conspirator may be used against the defendant even if he has no direct connection to the alleged criminal act. Prosecutors usually press charges of conspiracy to strengthen their overall case if the evidence they have can be loosely connected to the defendant.
- Prosecutors tend to play on intentions. Sometimes, the defendant can be a big talker who may just overtly express his disapproval on a certain matter. These big talks can be used to interpret certain matters without any actual basis and certainty. It, therefore, becomes unclear if the defendant actually intended to commit the crime or not.
Fighting Charges of Conspiracy
A good defense lawyer will need to attack and prove two major areas to save the defendant from a possible court-martial under Article 81:
- Prosecutor will need to prove that the defendant was aware of the conspiracy and the overt action he took was intended towards it. To override this charge, a good defense attorney will need to prove the credibility of the case. They will need to provide witness testimony and evidence against the overt action presented by the prosecutor.
- Question the co-conspirators’ motives and credibility. Attacking the validating proofs of the co-conspirators is likely to strengthen the defense case especially in cases where the defendant is not the actual co-conspirator.
Punishment for Proven Article 81 – Conspiracy
The maximum charges that a service member will face is the maximum penalty of the UCMJ article that was broken.
Say, for example, a service member was found guilty of conspiring of committing robbery with another person. The conviction, in this case, will be the maximum sentence awarded under Article 122: Robbery of UCMJ.
The death penalty is an exception to this rule. A service member found guilty under Article 81 cannot be awarded an execution sentence for violating Article 81.